Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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Automation Support, Inc. v. Humble Design, LLC

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-10386

Opinion Date: December 8, 2020

Judge: Gregg Costa

Areas of Law: Civil Procedure, Legal Ethics

Automation Support filed suit against its former employees and one employee's new company, Humble Design, under the Texas Theft Liability Act (TTLA). After a year and a half of litigation in the district court, the parties agreed to voluntarily dismiss all claims with prejudice. In the joint stipulation, Defendants Humble Design and Warren Humble reserved the right to seek attorney's fees under the TTLA, which is a "loser pays" law. The magistrate judge awarded the fees. In 2018, the Fifth Circuit affirmed the magistrate judge's decision and remanded for the district court to award appellate attorney's fees. The court also dismissed for lack of jurisdiction Automation Support's appeal. The current appeal concerns Automation Support's most recent motion for relief from judgment under Rule 60(b), in which Automation Support again argued that the magistrate judge did not have jurisdiction to award attorney's fees. The magistrate judge denied the motion in March 2020, and this appeal is timely only as to the order denying that Rule 60 motion. Automation Support cannot appeal the underlying judgment that issued years ago. To the extent Automation Support argues that defendants were not prevailing parties, the court has already rejected that argument. The court rejected Automation Support's new contention that the Rule 41 joint dismissal deprived the district court of jurisdiction to later award fees. Because Automation Support has inundated the district court and this court with frivolous filings, and because of its bad-faith refusal to recognize what the court held three years ago, defendants may file a motion with this court for appellate attorney's fees under 28 U.S.C. 1927. The court once against affirmed the district court's judgment.

Colorado v. Arellano

Court: Colorado Supreme Court

Citation: 2020 CO 84

Opinion Date: December 7, 2020

Judge: Gabriel

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

The issue presented for the Colorado Supreme Court's review in this interlocutory appeal was whether the district court abused its discretion in disqualifying the Fourth Judicial District Attorney's office. Erica Arellano was charged with second degree murder for shooting and killing her boyfriend, M.H. Arellano claimed that, during the relationship, M.H. perpetrated domestic violence on her and that self-defense would be a critical issue and the crux of Arellano’s defense. A.H. was an employee of the district attorney’s office and was married to, but separated from, M.H. at the time of his death. A.H. was a potentially significant witness in this case because she had (and already provided to the district attorney’s office) information tending to undermine Arellano’s claim of self-defense. In light of A.H.’s relationship with the district attorney’s office and the significance of her testimony to this case, Arellano filed a motion to disqualify the district attorney’s office under section 20-1-107(2), C.R.S. (2020). The district court held a hearing on this motion and, in a lengthy and detailed bench ruling, found that, on the facts presented, special circumstances existed making it unlikely that Arellano could receive a fair trial. The court thus granted Arellano’s motion to disqualify. The State then filed this interlocutory appeal. The Supreme Court determined the district court did not abuse its discretion in disqualifying the district attorney's office, thus affirming the court's order and remanding this case for further proceedings.

Colorado v. Kent

Court: Colorado Supreme Court

Citation: 2020 CO 85

Opinion Date: December 7, 2020

Judge: Samour

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

The issue presented for the Colorado Supreme Court's review in this interlocutory appeal was whether the district court abused its discretion in disqualifying the Fifth Judicial District Attorney's office. The district attorney and the elected coroner of Lake County, Colorado, Shannon Kent, did not get along. Brown prosecuted Kent for perjury, a class 4 felony, and second degree official misconduct, a class 1 petty offense. After the case had been pending for approximately nine months, Kent filed a motion to disqualify Brown’s office, arguing that he was unlikely to receive a fair trial based on Brown’s personal interest in the case and the existence of special circumstances. Following briefing and an evidentiary hearing, the district court granted the motion. The trial court determined each special circumstance, “in and of itself,” did not warrant disqualification, but “viewed as a totality,” sufficed for the exceptional remedy sought by Kent. The Supreme Court determined the district attorney's office should not have been disqualified, finding the trial court failed to adequately explain how the circumstances in question, though individually inadequate to warrant disqualification, justified the extraordinary relief requested when considered together. "And the record before us reflects that Kent plainly failed to satisfy his burden of establishing that he would be unlikely to receive a fair trial if Brown’s office continues prosecuting this case. ... Even assuming the circumstances at issue 'may cast doubt' upon Brown’s 'motives and strategies' in this case, 'they do not play a part in whether [Kent] will receive a fair trial.'"

In the Matter of Ryan L. Kamada

Court: Colorado Supreme Court

Citation: 2020 CO 83

Opinion Date: December 7, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics

The Colorado Supreme Court considered the amended recommendation of the Colorado Commission on Judicial Discipline (“Commission”) that now-former District Court Judge Ryan Kamada be sanctioned by public censure for violations of the Colorado Code of Judicial Conduct that occurred while he was serving as a judicial officer. The recommendation concludes that then-Judge Kamada’s conduct violated the following provisions of the Code of Judicial Conduct: Canon 1, Rule 1.1(A) (requiring a judge to comply with the law), Rule 1.2 (requiring a judge to act in a manner that promotes public confidence in the judiciary), Rule 1.3 (prohibiting abuse of the prestige of judicial office); Canon 2, Rule 2.9 (prohibiting ex parte communications), Rule 2.10 (prohibiting judicial statements on pending cases); and Canon 3, (prohibiting the intentional disclosure of nonpublic judicial information). Having considered the full record, the Supreme Court concluded the Commission properly found that then-Judge Kamada violated numerous provisions of the Code of Judicial Conduct. Had Kamada not already resigned his position, removal from office would have been an appropriate sanction for his misconduct. Because he has resigned, the Court concurred with the Commission’s recommendation that Kamada should have been publicly censured.

Merrill v. Smith

Court: Idaho Supreme Court - Civil

Docket: 47511

Opinion Date: December 4, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Contracts, Legal Ethics

This case involved a fee dispute between two attorneys arising from a purported fee-sharing agreement. The underlying case involved an airman in the U.S. Air Force who was injured while driving through Idaho on his way to a posting in Alaska. The airman hired an Alaska attorney, Stephen Merrill, to represent him in pursuit of his personal-injury claims in Idaho. Merrill associated Erik Smith, an Idaho attorney, to act as local counsel in the airman’s suits. At a point in the proceedings, the airman terminated Merrill’s representation. Smith ultimately settled the case and retained the entire attorney fee. Merrill then sued Smith seeking his proportionate share of the fee. Smith moved for summary judgment which was granted by the district court. Merrill appeals. After review of the trial court record, the Idaho Supreme Court concluded the district court erred in granting summary judgment to Smith: Smith failed to meet his burden as the moving party on summary judgment. "When Smith filed his motion for summary judgment, he alleged that it was undisputed that there was no agreement reached between the parties, written or oral. This bald assertion contradicted the crux of Merrill’s complaint that the agreement about fee sharing had been reached over the course of the email correspondence. However, Smith did not support this assertion by presenting evidence or by citing to any admissible evidence in this record."

Michigan v. Brown

Court: Michigan Supreme Court

Docket: 158663

Opinion Date: December 3, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

At issue before the Michigan Supreme Court in this case was whether defendant, Troy Antonio Brown, was entitled to a new trial because the detective who conducted defendant’s police interview testified falsely against him. The Court concluded: (1) the detective’s testimony against defendant was false; (2) the prosecutor failed to correct the false testimony; and (3) there was a reasonable likelihood that the uncorrected false testimony affected the judgment of the jury. Therefore, judgment of the Court of Appeals was reversed, defendant’s conviction was vacated, and the matter remanded to the trial court for a new trial.

State ex rel. Fiser v. Kolesar

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5483

Opinion Date: December 3, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Legal Ethics

In this original action involving a dispute between two judges who sit on the Sandusky County Court the Supreme Court granted a peremptory writ of prohibition that vacated Judge John Kolesar's judgment entry vacating Judge Mary Elizabeth Fiser's judgment entries granting pay raises to certain personnel, holding that Judge Kolesar's vacating entry arose from an exercise of judicial power that he patently and unambiguously lacked jurisdiction to exercise. Shortly after Judge Fiser issued entries granting pay raises to court personnel Judge Kolesar, who serves as the court's administrative judge, issued a judgment entry vacating Judge Fiser's entries and forbidding pay raises and the expenditure of court resources that did not have his approval. Judge Fiser sought a writ of prohibition to prevent Judge Kolesar from enforcing his entry, and Judge Kolesar sought a writ of prohibition to prohibit Judge Fiser from making future entries that infringe on his powers as administrative judge. The Supreme Court granted a peremptory writ of prohibition that vacated Judge Kolesar's vacating entry, holding that Judge Kolesar patently and unambiguously lacked jurisdiction to issue his vacating entry.